Battle of the forms: conflicting general terms and conditions?
Battle of the forms
General terms and conditions are ubiquitous. In contractual relationships between companies, both parties regularly make terms and conditions about to each other.
As a result, both parties are convinced that their own terms and conditions apply to the concluded contract.
This is problematic when both sets of general conditions are contradictory provisions include.
After all, whose general terms and conditions take precedence in such a case?
In the absence of a statutory regulation in the Old Civil Code, this was the subject of much debate in case law and legal doctrine. This has led to divergent theories:
- First shot rule: the general conditions of the party that first communicated its general conditions shall apply.
However, if the other party rejects it and substitutes its own general terms and conditions, this rule does not apply.
- There will be no deal established since contracting parties do not have will on all substantial elements of the agreement.
- Knockout rule: the general terms and conditions of both parties apply where they do not contradict each other.
Where general terms and conditions contradict each other, the relevant provisions are disregarded and the standard legal regulation applies.
Knock out rule
The new contract law provides a solution to the prevailing legal uncertainty. In accordance with Article 5.23 NBW, it is the knockout rule that henceforth settles discussions regarding conflicting provisions.
The general conditions of both parties will apply to the concluded contract, except for those that contradict each other. In the latter case, the Belgian common law fill in the gaps.
The knockout rule will apply to agreements entered into from Jan. 1, 2023.
Exclude general conditions?
It is possible to include a clause in the general terms and conditions stating that the other party waives the application of its own general terms and conditions.
However, this provision can only apply insofar as the general terms and conditions are brought to the attention of and accepted by the other contracting party.
Questions about these new regulations? Contact our specialists at info@bannister.be or 03/369.28.00
